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United States v. Desotell

United States District Court, E.D. Wisconsin

April 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JIMMY L. DESOTELL, Defendant.

          ORDER DENYING MOTION TO SUPPRESS

          William C. Griesbach, Chief Judge

         Defendant Jimmy Desotell is charged in a Superceding Indictment, along with several others, with Conspiracy to Distribute and Possess with Intent to Distribute 500 Grams or more of Methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Desotell is also charged in a second count with Knowingly Using and Carrying a Firearm During and in Relation to a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A). The charges arise, at least in part, out of the May 30, 2017 search of Desotell's backpack and drawstring bag by officers of the Green Bay Police Department. The case is presently before the court on Desotell's motion to suppress the evidence obtained in the search as well as any other evidence derived therefrom. Desotell contends that the drugs, scales, packaging material, and gun found in his backpack must be suppressed because the search conducted by the police was in violation of his Fourth Amendment rights. For the reasons that follow, the motion will be denied.

         FACTS

         This case arises out of Desotell's misfortune in placing his bags in a borrowed van that had been used in a retail return fraud scheme several hours earlier. At approximately 6:00 p.m., the Green Bay Police Department received a call reporting a retail theft at Kohl's Department Store located in Green Bay, Wisconsin. At approximately 7:40 p.m., Green Bay Police Officer Michael Knetzger, who began his shift at 7:00 p.m., arrived at the store to investigate the complaint. Officer Knetzger was informed by the store manager that a person had entered the store and committed what was generally referred to as a return fraud where merchandise on display is taken to the return desk and returned for cash. More specifically, according to the report, a male suspect was seen selecting a pair of Nike sandals, size 8, valued at around $30. The suspect then took the sandals to the return desk where he received a cash refund for a purchase he had never made. The store manager described the suspect as a male, Native-American, who had various tattoos and was wearing a red shirt. The manager also provided Officer Knetzger with a surveillance photo of the individual. The store manager told Officer Knetzger that the loss prevention officer had attempted to stop the individual, but he left the store and got into the passenger side of a vehicle which then fled heading east. The vehicle was described as a red Saturn VUE SUV with a license plate 180-ZLE / WI.

         Officer Knetzger ran the plate and learned that the Saturn VUE SUV was registered to Larissa Lucas who lived at 1126 Pine Street in Green Bay. Officer Knetzger drove by Lucas' address but the SUV was not there. The Police Department's database listed Allejandro Cantu, who lived on Red Tail Drive in Outagamie County, as Lucas' boyfriend. Officer Knetzger had Outagamie County officers check that address and was told Cantu was not there. Officer Knetzger continued with his other duties but checked back at Lucas' residence shortly before 11:00 p.m. At that time he observed that red VUE SUV in the parking lot behind the building where Lucas lived. Desotell was seated in the driver's seat with the front door open, and Lucas was leaning into the back passenger area to retrieve her young son from his car seat. Officer Knetzger called out his location, and cover officers were immediately dispatched to assist.

         Officer Knetzger immediately realized that Desotell was not Cantu and told him he was not the person he was looking for. Given the report that Cantu was Lucas' boyfriend and he had been seen fleeing in her car with someone else driving, however, Officer Knetzger regarded her as a suspect as well as Cantu. Officer Knetzger told Desotell that once he was shown identification and made sure there were no active warrants for his arrest, he would be free to leave. Despite being told he was not the person police were looking for, Desotell appeared nervous and fidgety.

         Shortly thereafter, Officers Keith Rager and Aaron Walker arrived for back-up, and Officer Knetzger briefed them on what was going on. He then ran Desotell's name through the state database and upon learning there were no outstanding warrants for him, told him he was free to go. Officer Walker also noticed that Desotell appeared “extremely agitated and fidgety” and eager to end the contact with the officers. Officer Walker knew that the area was one where drug activity was common and based on Desotell's behavior and the poor lighting in the parking lot, he conducted a brief frisk of Desotell to see if he had any weapons on his person. None were found.

         At about the same time, Officer Knetzger explained to Lucas that he was investigating a retail theft incident involving her vehicle and that they had been looking for Cantu at the Red Tail Drive address. Lucas said that she had just dropped him off there but the people police talked to would likely not tell them he was there for fear of getting him in trouble. At Officer Knetzger's request, Lucas also gave him permission to search her vehicle for evidence of the retail theft. At some point, Lucas also offered to go into her residence and get the sandals that she had previously purchased, the receipt for which Cantu had used to obtain the fraudulent refund.

         Officer Knetzger testified that the evidence he was looking for included the receipt that was used to commit the fraud and perhaps others, and possibly the precise amount of money that Cantu had received from the store, as well as the red shirt he was wearing at the time. Even though he was given consent, Officer Knetzger also believed he had probable cause to conduct the search since Cantu was observed leaving the store in the vehicle. Based on his experience investigating that type of crime, Officer Knetzger believed Cantu would have received a receipt of the transaction. Because he intended to search the van for the receipt and the other possible evidence of the retail theft, Officer Knetzger refused to let Desotell drive off in the SUV even though he said Lucas was letting him borrow it.

         At that point, Lucas asked Officer Rager to retrieve her son's blanket from the back of the van. Officer Ragar opened the back hatch and observed that the back area was full of clothing and other items, though he did not conclude it was store merchandise. He retrieved the blanket and handed it to Lucas. Officer Knetzger then went with Lucas into the residence so she could hand her child over to her mother, who was staying there. With the hatch still open, Desotell reached inside and grabbed two bags that were in the back cargo area. One of the bags was a backpack; the other, a Nike bag with a drawstring. Officer Rager stopped him and took possession of the bags so that they could search them. The Nike bag was heavy, and Officer Rager asked Desotell what was inside. Although Desotell had just claimed that he owned the bags, he said he did not know what they contained. Officer Rager asked Desotell if he could search the bags for stolen property, but Desotell did not respond.

         After retrieving the bags from Desotell, Officer Rager saw into the top opening of the bag with the drawstring what appeared to be a pistol case. Moving it aside, he saw a silver and black pistol. Upon searching further, Officer Rager found a large quantity of what was later determined to be methamphetamine inside the pistol case. Desotell was then placed under arrest.

         In the meantime, Officer Walker, who had commenced searching at the driver's side of the vehicle, observed a used syringe underneath the driver's seat and recognize d its significance to the possible presence of drugs. Immediately thereafter, Officer Walker heard Officer Rager direct Desotell to place his hands behind his back and moved to the rear of the vehicle where he saw the open Rager gun case with the white crystalline material in it and the handgun at the bottom of the bag. After Desotell was handcuffed, Officer Walker resumed his search of the front seat area and found another syringe containing a clear liquid and other used syringes. He also found a bag of crystalline powder in the front passenger seat.

         ANALYSIS

         The Fourth Amendment protects individuals against unreasonable governmental searches and seizures. U.S. Const. Amend. IV. Although the text of the Fourth Amendment does not state as much, the Court has construed it as in general requiring that a warrant issued by a neutral magistrate authorize any search or seizure of an individual's person, house, papers or effects. Kentuck y v. King, 563 U.S. 452, 459 (2011). An exception to the warrant requirement exists when exigent circumstances are present. Such circumstances exist when a law enforcement officer has probable cause to believe that a motor vehicle he has stopped contains evidence of a crime. Carroll v. United States, 267 U.S. 132 (1925). Further, “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the ...


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